By: Bruce Buchanan, Sebelist Buchanan Law



The U.S. Court of Appeals for the Ninth Circuit in United States v. State of California (9th Cir. Apr. 2019) has ruled against the Trump Administration on most of the issues in the California "sanctuary state" case. Like the underlying District Court ruling, the Ninth Circuit decision emphasizes the important constitutional principle that the federal government cannot compel states to help it enforce federal law. It also adopts an appropriately narrow view of the doctrine that forbids state policies "discriminating" against the federal government and those who deal with it.

As previously reported in http://discuss.ilw.com/blogs/bbuchan...nst-california, the Trump administration filed a lawsuit challenging three California laws: SB 54, which restricts state and local officials from sharing information about immigrants within the state, with federal agencies; AB 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court dates or deportation; and AB 450, which forbids private employers from cooperation with federal ICE raids and audits unless such cooperation is mandated by a court order or a specific federal law, and requires employers to give notice to employees of any federal immigration-related inspections of employment records.

The federal government claimed all three bills conflict with federal law and are therefore "preempted," and that many parts of them also violate the doctrine of "intergovernmental immunity," which bars states from "discriminating" against the federal government or "those with whom it deals." In July 2018, a federal district judge ruled in favor of California on two of the three laws in question.

This ruling largely follows the reasoning of the district court decision. It too upholds SB 54 because it does not actually conflict with any federal law. The Ninth Circuit, like the district court, concluded SB 54 does not violate Section 1373. The United States' primary argument against SB 54 was that it forces federal authorities to expend greater resources to enforce immigration laws, but that would be the case regardless of SB 54, since California would still retain the ability to "decline to administer the federal program."

SB 54 may well frustrate the federal government's immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts. The United States stresses that… Congress expected cooperation between states and federal immigration authorities…. But when questions of federalism are involved, we must distinguish between expectations and requirements. In this context, the federal government was free to expect as much as it wanted, but it could not require California's cooperation without running afoul of the Tenth Amendment.

The Ninth Circuit also upheld AB 103 state inspections of federal immigration detention facilities on much the same basis as the district court: the inspections do not "discriminate" against the federal government because they are much the same as those that California requires for other prisons within the state.

The Ninth Circuit did reaffirm the district court's ruling that SB 450's worker notification requirement is constitutional. It emphasized that the requirement does not "discriminate" against the federal government because it does not treat its agents less favorably than similarly situated private parties: The Supreme Court has clarified that a state "does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450's employee-notice provisions do not violate the doctrine of intergovernmental immunity.

If you want to know more information on issues involving employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.